China: UN tribunal has no jurisdiction on case filed by PH

By Ellen Tordesillas, VERA Files

China insisted Sunday that the United Nations Arbitral Tribunal has no jurisdiction on the complaint filed by the Philippines seeking to declare null and void the nine-dash line on China’s maps.

China’s 27-page position paper, posted on the website of its Ministry of Foreign Affairs, came eight days before the Dec. 15 deadline given by the U.N. court for Beijing to answer the Philippine complaint filed on Jan. 22, 2013.

With or without China’s reply, the U.N. court will start the hearings.

The U.N. Arbitral Tribunal is a mechanism provided in the U.N. Convention on the Law of the SEA (UNCLOS), which defines the rights and responsibilities of nations with respect to their use of the world’s oceans.

The Convention, signed by 165 countries, including the Philippines and China, establishes guidelines for businesses, the environment and the management of marine natural resources.

China, which has refused to participate in the U.N. proceedings, stressed that the position paper should not be regarded as its acceptance of or participation in the arbitration.

Beijing raised four main points in declaring the U.N. tribunal’s lack of jurisdiction over Manila’s complaint.

It said:

1. The issues raised by the Philippines concern the territorial sovereignty over several maritime features in the South China Sea and not the interpretation or application of UNCLOS.

2. China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations. By unilaterally initiating the present arbitration, the Philippines has breached its obligation under international law.

3. The issues raised in the Philippine complaint fall within the reservations China made when it ratified UNCLOS in 2006 which include maritime delimitation.

4. Since the Philippine complaint is outside the jurisdiction of the U.N. Arbitral Court, China’s rejection of and nonparticipation in the present arbitration stand on solid ground in international law.

The position paper commented on the three main categories in the Philippine complaint.

First: China’s assertion of the “historic rights” to the waters, seabed and subsoil within the “nine-dash line” (i.e., China’s dotted line in the South China Sea) beyond the limits of its entitlements under the Convention is inconsistent with the Convention.

China’s reply: The core of those claims is that China’s maritime claims in the South China Sea have exceeded the extent allowed under the Convention. However, only after the extent of China’s territorial sovereignty in the South China Sea is determined can a decision be made on whether China’s maritime claims in the South China Sea have exceeded the extent allowed under the Convention.

Second: China’s claim to entitlements of 200 nautical miles and more, based on certain rocks, low-tide elevations and submerged features in the South China Sea, is inconsistent with the Convention.

China’s reply: China believes that the nature and maritime entitlements of certain maritime features in the South China Sea cannot be considered in isolation from the issue of sovereignty….Whether low-tide elevations can be appropriated as territory is in itself a question of territorial sovereignty, not a matter concerning the interpretation or application of the Convention.

Third: China’s assertion and exercise of rights in the South China Sea have unlawfully interfered with the sovereign rights, jurisdiction and rights and freedom of navigation that the Philippines enjoys and exercises under the Convention.

China’s reply: The premise for this claim must be that the spatial extent of the Philippines’ maritime jurisdiction is defined and undisputed, and that China’s actions have encroached upon such defined areas. China and the Philippines have not delimited the maritime space between them. Until and unless the sovereignty over the relevant maritime features is ascertained and maritime delimitation completed, this category of claims of the Philippines cannot be decided upon. It should be particularly emphasized that China always respects the freedom of navigation and overflight enjoyed by all States in the South China Sea in accordance with international law.

China accused the Philippines of circumventing UNCLOS’ lack of jurisdiction over territorial disputes.

It said: “The Philippines has cunningly packaged its case in the present form. It has repeatedly professed that it does not seek from the Arbitral Tribunal a determination of territorial sovereignty over certain maritime features claimed by both countries, but rather a ruling on the compatibility of China’s maritime claims with the provisions of the Convention, so that its claims for arbitration would appear to be concerned with the interpretation or application of the Convention, not with the sovereignty over those maritime features. This contrived packaging, however, fails to conceal the very essence of the subject-matter of the arbitration, namely, the territorial sovereignty over certain maritime features in the South China Sea.”

(VERA Files is put out by veteran journalists taking a deeper look at current issues. Vera is Latin for “true.”)

China's Position Paper on PH-Initiated Arbitration Case over South China Sea dispute